No. 17-1000 IN THE UNITED STATES COURT OF APPEALS FOR THE AMES CIRCUIT WILLA D. LOWE, individually and on behalf of a class of similarly situated persons, v. Plaintiff-Appellant, AMES MEAT, INC., Defendant-Appellee. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF AMES DOCKET NO. 16-CV-3500-JD REPLY BRIEF FOR THE PLAINTIFF-APPELLANT The John Hart Ely Memorial Team DAVID BEYLIK JASON ETHRIDGE JENYA GODINA ISAAC PARK DAVID PHILLIPS DEREK REINBOLD Counsel for Plaintiff-Appellant MARCH 22, 2017, 6:15 P.M. AMES COURTROOM HARVARD LAW SCHOOL Oral Argument
TABLE OF CONTENTS TABLE OF CONTENTS...i TABLE OF AUTHORITIES... iii ARGUMENT... 1 I. Rule 23 permits a federal court to entertain a class action under the ADTPA, notwithstanding 1001.9(b).... 1 A. The really regulates procedure test which validates Rule 23 is the proper approach under the REA... 1 1. The weight of authority has rejected Justice Stevens s rationale.... 1 2. The Marks test, properly applied, cannot support Justice Stevens s rationale... 2 3. Defendant s proposed test is incompatible with Sibbach... 3 4. Defendant erroneously imports the twin aims of Erie into the REA analysis... 4 B. Alternatively, Rule 23 is valid because ADPTA 1001.9(b) does not define the scope of a state right.... 5 1. Defendant relies on factors that do not clearly establish the purposes behind 1001.9(b).... 6 2. Defendant misunderstands the ADTPA s remedial scheme.... 6 3. Defendant s objections to Lisk are unfounded.... 7 C. Defendant s superiority argument is not properly before this Court... 8 II. The district court abused its discretion by imposing heightened ascertainability.... 9 A. Defendant overstates the difficulty of finding an abuse of discretion in this case.... 9 B. Defendant implicitly concedes that the district court abused its discretion.... 11 C. Defendant mischaracterizes the state of the law regarding administrative feasibility.... 11 1. Administrative feasibility is an ambiguous and unsettled concept.... 11 2. Defendant misrepresents the weight of authority... 14 i
D. Defendant concedes that records in its possession would make Lowe s class ascertainable under its own proposed standard... 15 CONCLUSION...17 ii
TABLE OF AUTHORITIES Cases 3081 Main St., LLC v. Bus. Owners Liab. Team LLC, 2012 WL 4755048 (D. Conn. Sept. 24, 2012)... 16 Abbas, LLC v. Foreign Policy Grp., LLC, 783 F.3d 1328 (D.C. Cir. 2015)... 2 Amchem Prods. v. Windsor, 521 U.S. 591 (1997)... 11 Brecher v. Republic of Argentina, 806 F.3d 22 (2d Cir. 2015)... 13, 14 Briseno v. ConAgra Foods, 844 F.3d 1121 (9th Cir. 2017)... 12, 13, 14 Byrd v. Aaron s Inc., 784 F.3d 154 (3d Cir. 2015)... 13 Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013)... 12 EQT Prod. Co. v. Adair, 764 F.3d 347 (4th Cir. 2014)... 12, 14 Fed. Treasury Enter. Sojuzplodoimport v. SPI Spirits Ltd., 726 F.3d 62 (1st Cir. 2013)... 2 Garcia v. E.J. Amusements of N.H., Inc., 98 F. Supp. 3d 277 (D. Mass. 2015)... 6 Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415 (1996)... 4 Gen. Tel. Co. v. Falcon, 457 U.S. 147 (1982)... 16 Godin v. Schencks, 629 F.3d 79 (1st Cir. 2010)... 2 Hanna v. Plumer, 380 U.S. 460 (1965)... 1, 4, 5 iii
Hayes v. Wal-Mart Stores, Inc., 725 F.3d 349 (3d Cir. 2013)... 16 In re Cmty. Bank of N. Va. Mortg. Lending Practices Litig., 795 F.3d 380 (3d Cir. 2015)... 13, 14 In re Dial Complete Mktg. & Sales Practices Litig., 312 F.R.D. 36 (D.N.H. 2015)... 14 In re Nexium Antitrust Litig., 777 F.3d 9 (1st Cir. 2015)... 12, 14 James River Ins. Co. v. Rapid Funding, LLC, 658 F.3d 1207 (10th Cir. 2011)... 2 Jones v. United Parcel Serv., Inc., 674 F.3d 1187 (10th Cir. 2012)... 2 Karhu v. Vital Pharms., Inc., 621 Fed. App x 945 (11th Cir. 2015) (unpublished)... 14 King v. Palmer, 950 F.2d 771 (D.C. Cir. 1991) (en banc)... 3 Knepper v. Rite Aid Corp., 675 F.3d 249 (3d Cir. 2012)... 2 Lisk v. Lumber One Wood Preserving, LLC, 792 F.3d 1331 (11th Cir. 2015)... 6, 7 Lumbermen s Mut. Cas. Co. v. Wright, 322 F.2d 759 (5th Cir. 1963)... 5 Marcus v. BMW of North America, LLC, 687 F.3d 583 (3d Cir. 2012)... 12 Marks v. United States, 430 U.S. 188 (1977)... 2 Retained Realty, Inc. v. McCabe, 376 Fed. App x 52 (2d Cir. 2010)... 2 Reyes v. Netdeposit, LLC, 802 F.3d 469 (3d Cir. 2015)... 9 S.A. Healy Co. v. Milwaukee Metro. Sewage Dist., 60 F.3d 305 (7th Cir. 1995)... 6 iv
Semtek Intern. Inc. v. Lockheed Martin Corp., 531 U.S. 497 (2001)... 4 Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393 (2010)... passim Shook v. Bd. of Cty. Comm rs, 543 F.3d 597 (10th Cir. 2008)... 10 Sibbach v. Wilson & Co., 312 U.S. 1 (1941)... 3 Singleton v. Wulff, 428 U.S. 106 (1976)... 8 Suchanek v. Sturm Foods, Inc., 311 F.R.D. 239 (S.D. Ill. 2015)... 6 United States v. Glecier, 923 F.2d 496 (7th Cir. 1991)... 9, 10 Whitlock v. FSL Mgmt., LLC, 843 F.3d 1084 (6th Cir. 2016)... 2 Young v. Nationwide Mut. Ins. Co., 693 F.3d 532 (6th Cir. 2012)... 10, 14 Statutes Ames Rev. Stat. 1001 et seq.... 6, 7 Other Authorities John Hart Ely, The Irrepressible Myth of Erie, 87 Harv. L. Rev. 693 (1974)... 5 Treatises 1 William B. Rubenstein, Newberg on Class Actions (5th ed. 2016)... 9 v
ARGUMENT I. Rule 23 permits a federal court to entertain a class action under the ADTPA, notwithstanding 1001.9(b). When a Federal Rule and a state law directly conflict, the Federal Rule governs unless it violates (1) the Constitution or (2) the Rules Enabling Act. Hanna v. Plumer, 380 U.S. 460, 470 71 (1965). Here, nobody disputes that Rule 23 and 1001.9(b) are in direct conflict. See Appellee s Br. 14 15. Nor does anyone dispute Rule 23 s constitutionality. See id. Thus, the only remaining question is whether Rule 23 meets the REA s requirements. Because Rule 23 does, it governs. A. The really regulates procedure test which validates Rule 23 is the proper approach under the REA. Defendant does not argue that Rule 23 fails the really regulates procedure test. Instead, Defendant seeks to avoid this test. But its attempts are unpersuasive. 1. The weight of authority has rejected Justice Stevens s rationale. Defendant contends that the majority of courts have found Justice Stevens s Shady Grove concurrence controlling. Appellee s Br. 17. But an overwhelming majority of circuit courts have taken a different path. The D.C. and Eleventh Circuits have explicitly refused 1
to find Justice Stevens s opinion controlling. 1 The First and Tenth Circuits initially adopted his concurrence but have since reversed course to apply the plurality s test instead. 2 And the Second and Third Circuits have concluded that Shady Grove does not set forth a single test for whether a Federal Rule is procedural. 3 The only circuit court that has not rejected, retreated from, or avoided Justice Stevens s concurrence is the Sixth Circuit. See Whitlock v. FSL Mgmt., LLC, 843 F.3d 1084, 1091 n.2 (6th Cir. 2016). Of the seven circuits to consider the issue, only one has found Justice Stevens s rationale controlling. The weight of authority, then, has flatly rejected Defendant s rule. 2. The Marks test, properly applied, cannot support Justice Stevens s rationale. Further, Defendant s insistence that the concurrence controls because it reflects a moderate approach, Appellee s Br. 18 (emphasis added), betrays a fundamental misunderstanding of Marks v. United States, 430 U.S. 188 (1977). The Marks test is not a Goldilocks inquiry it isn t about finding the approach that s not too hot, not too cold, 1 See Abbas, LLC v. Foreign Policy Grp., LLC, 783 F.3d 1328, 1337 (D.C. Cir. 2015); Lisk v. Lumber One Wood Preserving, LLC, 792 F.3d 1331, 1336 37 (11th Cir. 2015). 2 Compare Godin v. Schencks, 629 F.3d 79, 89 (1st Cir. 2010) (applying concurrence), and James River Ins. Co. v. Rapid Funding, LLC, 658 F.3d 1207, 1217 (10th Cir. 2011) (same), with Fed. Treasury Enter. Sojuzplodoimport v. SPI Spirits Ltd., 726 F.3d 62, 83 (1st Cir. 2013) (applying plurality), and Jones v. United Parcel Serv., Inc., 674 F.3d 1187, 1206 (10th Cir. 2012) (same). 3 Retained Realty, Inc. v. McCabe, 376 Fed. App x 52, 55 n.1 (2d Cir. 2010); see also Knepper v. Rite Aid Corp., 675 F.3d 249, 265 (3d Cir. 2012). 2
but just right. Rather, Marks is about identifying a logical position implicitly approved by at least five Justices who support the judgment. King v. Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991) (en banc). For the concurrence to control, the plurality would have had to agree with its rationale. Id. But the plurality rejected Justice Stevens s approach in no uncertain terms: [Justice Stevens s] analysis squarely conflicts with... the rule we apply. Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 411 (2010) (plurality opinion). Under Marks, then, Justice Stevens s rule cannot control. 3. Defendant s proposed test is incompatible with Sibbach. Defendant does not contest that Sibbach remains binding on this Court. See Appellee s Br. 20 21. Yet the logic of Sibbach devastates Defendant s proposed test. In Sibbach v. Wilson & Co., 312 U.S. 1 (1941), the Court considered whether a Federal Rule ordering a physical examination violated the REA. See id. at 13. In answering, the Court never resolved whether the rule offend[ed] the important right to freedom from invasion of privacy. Id. at 14. That s because it didn t need to it rejected a test that would turn on the characterization of an allegedly displaced right and looked only to the Federal Rule. See id. The dictum Defendant plucks from Hanna, see Appellee s Br. 20, in no way alters the Sibbach analysis. The Hanna Court embraced 3
Sibbach s rule without modification. Hanna, 380 U.S. at 464. To be sure, it recognized that courts should interpret Federal Rules, if possible, to avoid conflicts with state law. But as the Supreme Court has repeatedly held, once a conflict is unavoidable, id. at 470, the validity of a Federal Rule depends only on whether it really regulates procedure, id. at 464. 4 Defendant quotes Justice Scalia s acknowledgement that an explicit focus on the challenged Federal Rule is hard to square with 2072(b) s terms but ignores the next sentence: Sibbach has been settled law, however, for nearly seven decades. Shady Grove, 559 U.S. at 413 (plurality opinion). This is the crucial point. In interpreting 2072(b), this Court is not writing on a blank slate. At bottom, the Ames Circuit lacks the power to cast aside a decades-old decision reading the REA to focus only on the Federal Rule. Id. at 414. 4. Defendant erroneously imports the twin aims of Erie into the REA analysis. Defendant also resists the really regulates procedure test because it contravenes [the] twin aims of Erie by encouraging forum shopping and inequitable administration of the laws. Appellee s Br. 22. But this objection contains a fundamental error: the twin aims of Erie 4 Defendant s reliance on Semtek Intern. Inc. v. Lockheed Martin Corp., 531 U.S. 497 (2001), and Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415 (1996), is therefore misguided. See Appellee s Br. 20. Those cases dealt with the threshold question of whether state law and a Federal Rule conflicted not whether an unavoidable conflict between them triggered an REA problem. See Semtek, 531 U.S. at 508; Gasperini, 518 U.S. at 437. 4
are irrelevant here. See Hanna, 380 U.S. at 469 70. Indeed, this confusion is precisely what Professor John Hart Ely called the irrepressible myth of Erie. See John Hart Ely, The Irrepressible Myth of Erie, 87 Harv. L. Rev. 693, 697 98 (1974) (lamenting the indiscriminate admixture of issues under the REA and under Erie). Of course a uniform set of federal rules of civil procedure will create divergent outcomes in federal versus state courts. After all, that is one of the shaping purposes of the Federal Rules. Hanna, 380 U.S. at 472 (quoting Lumbermen s Mut. Cas. Co. v. Wright, 322 F.2d 759, 764 (5th Cir. 1963)). By casting doubt on Congress s long-recognized power to prescribe [Federal Rules that] inevitably differ from comparable state rules, id. at 473, Defendant perpetuates the myth of Erie. B. Alternatively, Rule 23 is valid because ADPTA 1001.9(b) does not define the scope of a state right. Under Justice Stevens s approach, Defendant fails to meet the heavy burden of proving that a seemingly procedural rule in the ADTPA is actually substantive. Appellee s Br. 24. Where a class action prohibition is facially procedural and there are competing narratives about the state legislature s purposes, courts must respect Congress decision that Rule 23 governs. Shady Grove, 559 U.S. at 436 (Stevens, J., concurring). Defendant s arguments to the contrary are insufficient. 5
1. Defendant relies on factors that do not clearly establish the purposes behind 1001.9(b). Defendant s abridgement of Justice Stevens s analysis into a three-factor checklist (1) statutory location, (2) cause of action, and (3) policy objectives, Appellee s Br. 24 has no basis in Shady Grove. For Justice Stevens, legislative purpose remains the touchstone for determining whether a state law is substantive. Shady Grove, 559 U.S. at 432 (Stevens, J., concurring). Accordingly, courts applying Shady Grove have repeatedly ignored Defendant s proposed factors. See, e.g., Lisk, 792 F.3d at 1336; Garcia v. E.J. Amusements of N.H., Inc., 98 F. Supp. 3d 277, 284 (D. Mass. 2015); Suchanek v. Sturm Foods, Inc., 311 F.R.D. 239, 264 (S.D. Ill. 2015). 5 2. Defendant misunderstands the ADTPA s remedial scheme. Far from having to generate its own remedial scheme, Appellee s Br. 29, a federal court applying Rule 23 would simply follow 1001.9(a) and award actual damages or the sum of $500, whichever is greater. Ames Rev. Stat. 1001.9(a). Because Lowe s action is not brought by Ames s Attorney General or a district attorney, the limit[] to actual damages in 1001.9(c) does not apply. Id. 1001.9(c). The remedial scheme is clear. 5 Moreover, Defendant s proposed factors just as easily point to procedural efficiency. For example, having the Attorney General, rather than the courts, sort out duplicative suits can be read to serve an objective that even Defendant concedes is procedural improv[ing] the accuracy [and] lower[ing] the cost of the judicial process. Appellee s Br. 23 (quoting S.A. Healy Co. v. Milwaukee Metro. Sewage Dist., 60 F.3d 305, 310 (7th Cir. 1995)). 6
Defendant would have this Court rewrite the ADTPA by transforming the Attorney General s remedy of actual damages into a cap on a defendant s liability for private class actions. Appellee s Br. 30. This project is misguided. First, actual damages are not a cap on liability: the ADTPA prohibits conduct where actual damages would regularly exceed $500. See 1001.9(c) (prohibiting, e.g., odometer fraud and pyramid schemes). Second, there are sensible reasons to permit divergent recoveries in private, as opposed to public, representative lawsuits. For instance, the public mechanism of the Attorney General has cost-saving features that do not exist for private class actions. See Appellant s Br. 27. Thus, the reasons for limiting recovery in one context do not translate to the other. Finally, the reasons Defendant recites do not clear the high bar for REA violations. Shady Grove, 559 U.S. at 432 (Stevens, J., concurring). Because there are competing narratives of the Ames legislature s purposes, this Court should respect Ames s decision to write its bar on class actions in procedural terms. Id. at 436. Congress s contrasting procedural decision in Rule 23 therefore controls. 3. Defendant s objections to Lisk are unfounded. Defendant responds to Lisk by tilting at windmills. The Eleventh Circuit did not ignore[] the reasoning in Shady Grove. Appellee s Br. 29. It merely found Defendant s three factors did not justify departing from Shady Grove s result. See Lisk, 792 F.3d at 7
1336. Further, the notion that the Lisk court s approach disembowel[s] state substantive authority, Appellee s Br. 29, is false. If Ames wants to limit defendant liability, it can simply pass a statute with an express cap on damages. See Shady Grove, 559 U.S. at 432 33 (Stevens, J., concurring). It can even limit defendant liability by prohibiting class actions, so long as it includes a clear statement that its reason for doing so is to limit liability. See id. at 434 n.17. Under Lisk, these options remain available. Defendant concedes that the statute in Lisk is indistinguishable from the ADTPA. Appellee s Br. 29. This Court should therefore follow Lisk to conclude that Rule 23 is valid under Shady Grove. C. Defendant s superiority argument is not properly before this Court. Defendant urges this Court to affirm because Lowe s class action is not superior under Rule 23(b)(3). Appellee s Br. 31 33. This issue, however, was neither addressed by the lower court, J.A. 10 n.5, nor ordered for briefing by this Court, J.A. 1. And [i]t is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below. Singleton v. Wulff, 428 U.S. 106, 120 (1976). Ruling on the Defendant s superiority argument not properly presented here would thus be an unacceptable exercise of [this Court s] appellate jurisdiction. Id. 8
II. The district court abused its discretion by imposing heightened ascertainability. Abuse of discretion is not a rubber stamp. Defendant cannot rescue what was, at bottom, the district court s mistake of law. Further, this case requires remand even on Defendant s own terms. A. Defendant overstates the difficulty of finding an abuse of discretion in this case. While the abuse of discretion standard may sound deferential, it has teeth because it implicitly encompasses the entire panoply of appellate standards of review. 1 William B. Rubenstein, Newberg on Class Actions 7:53 (5th ed. 2016). Specifically, [i]n reviewing a denial of class certification, [appellate courts] subject the District Court s legal rulings to de novo review. Reyes v. Netdeposit, LLC, 802 F.3d 469, 483 (3d Cir. 2015). This Court should therefore reject Defendant s version of the standard of review. Defendant asserts that [t]he chances of a district court s certification decision being overturned compare with those of camels who wish to pass through the eye of a needle, Appellee s Br. 35 (quoting United States v. Glecier, 923 F.2d 496, 503 (7th Cir. 1991)). This mischaracterizes both that quotation and the underlying law. 6 In fact, the Glecier court stated that the prospects of [a]ppellants who challenge evidentiary rulings of the district court... compare with 6 Further, Defendant s assertion is factually inaccurate. In cases like this one, where a discretionary appeal under Rule 23(f) may facilitate the development of the law, successful appeals... are relatively common. Rubenstein, supra, 7:45. 9
those of camels who wish to pass through the eye of a needle. Glecier, 923 F.2d at 503 (emphasis added). But of course fact-bound determinations like evidentiary rulings are given maximal deference. Lowe challenges no such factual findings. Defendant characterizes the district court s legal determinations as factual. Appellee s Br. 36. But [w]hether the district court applied the correct legal framework in its class certification decision is a legal question. Shook v. Bd. of Cty. Comm rs, 543 F.3d 597, 611 (10th Cir. 2008) (Gorsuch, J.) (emphasis added). The issue here is whether Lowe must demonstrate a real-world mechanism for identifying absent class members at class certification. J.A. 9 n.4. This question can be answered only after determining which legal framework to apply: If this Court adopts a heightened ascertainability framework, the answer may well be yes. But if this Court adopts narrow ascertainability, the answer will be no. See, e.g., Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 537 41 (6th Cir. 2012) (finding a class administratively feasible without proof of a real-world mechanism for identifying absent class members). This case thus turns on which ascertainability framework the Ames Circuit selects a legal question considered de novo. 10
B. Defendant implicitly concedes that the district court abused its discretion. As Defendant notes, when a district court applies a legal standard in the face of contrary controlling law[,] it abuse[s] its discretion. Appellee s Br. 37. The district court did just that: according to Defendant, [w]hile ascertainability seeks to resolve classaction manageability concerns, it is purposefully separate from the manageability inquiry of Rule 23(b)(3). Appellee s Br. 50 (emphasis added). Adding a separate inquiry, however, violates the Supreme Court s admonition that courts lack authority to substitute for Rule 23 s certification criteria a standard never adopted. Amchem Prods. v. Windsor, 521 U.S. 591, 622 (1997). Thus, even under Defendant s conception of the standard of review, the district court s denial of class certification was an abuse of discretion. C. Defendant mischaracterizes the state of the law regarding administrative feasibility. 1. Administrative feasibility is an ambiguous and unsettled concept. Administrative feasibility can take many forms. Recognizing this, the district court noted that the Ames Circuit has not yet fleshed out its version of ascertainability, despite its recognition of the administrative feasibility concept. J.A. 8. Nevertheless, Defendant argues that Lowe engineered ambiguity around the meaning of administrative feasibility, Appellee s Br. 40, and attempts then to pass 11
off the Third Circuit s approach as the prevailing view, Appellee s Br. 38 39. But circuits have, in fact, developed diverging approaches to administrative feasibility. Surveying the confused state of the law, the Ninth Circuit observed that [o]ther circuits have cited the Third Circuit s administrative feasibility standard but have not actually imposed the standard in the same manner as has the Third Circuit. Briseno v. ConAgra Foods, 844 F.3d 1121, 1126 n.6 (9th Cir. 2017). The First Circuit, for example, cited Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013), but interpreted administrative feasibility to require that plaintiffs propose an approach for eventually separating injured and uninjured class members. See In re Nexium Antitrust Litig., 777 F.3d 9, 19 (1st Cir. 2015). In contrast, the Third Circuit requires plaintiffs to demonstrate a mechanism for identifying absent class members prior to certification. See Carrera, 727 F.3d at 307. Similarly, the Fourth Circuit cited Marcus v. BMW of North America, LLC, 687 F.3d 583 (3d Cir. 2012), in holding that administrative barrier[s] to ascertaining class members prohibited certification. EQT Prod. Co. v. Adair, 764 F.3d 347, 358 (4th Cir. 2014). Unlike the Third Circuit, however, it is far from clear that the Fourth Circuit requires an affirmative demonstration of administrative feasibility as a separate prerequisite to class certification. Briseno, 12
844 F.3d at 1126 n.6. The Second Circuit also cited Marcus but then embarked on yet another formulation of administrative feasibility one that focused exclusively on whether the class definition was sufficiently objective and definite. See Brecher v. Republic of Argentina, 806 F.3d 22, 24 25 (2d Cir. 2015). Ironically, the contours of administrative feasibility have blurred even within the Third Circuit, which has cabined its administrative feasibility rule in recent cases. Briseno, 844 F.3d at 1126 n.6; see, e.g., In re Cmty. Bank of N. Va. Mortg. Lending Practices Litig., 795 F.3d 380, 396 97 (3d Cir. 2015) (reading Carrera narrowly to focus on specific evidentiary problems ); Byrd v. Aaron s Inc., 784 F.3d 154, 164 (3d Cir. 2015) (characterizing Carrera as requiring only that plaintiffs show that class members can be identified rather than creating a records requirement before certification). Defendant ignores this complex patchwork of approaches in concluding that the Ames Circuit s administratively feasible language places [it] squarely within the heightened ascertainability standard. Appellee s Br. 38. In reality, the meaning of administrative feasibility requires further interpretation by this Court. The Ames Circuit should therefore define administrative feasibility in accord with the traditional view of ascertainability a requirement that classes be defined with reference to definite and objective criteria. 13
2. Defendant misrepresents the weight of authority. Defendant references a nonexistent majority of circuits that view administrative feasibility as a separate prong of ascertainability. Appellee s Br. 37. In fact, of the five circuits that recognize administrative feasibility, 7 three do not analyze it as a separate branch of the ascertainability analysis. See Brecher, 806 F.3d at 24 25 (Second Circuit) (focusing on class definition); EQT, 764 F.3d at 358 (Fourth Circuit) (analyzing administrative feasibility through class definition and the enumerated elements of Rule 23); Young, 693 F.3d at 537 41 (Sixth Circuit) (confining the analysis to class definition). While the First Circuit views administrative feasibility as a distinct branch of its ascertainability analysis, see Nexium, 777 F.3d at 19, that branch consists only of the modest requirement that plaintiffs propose a mechanism for eventually determining whether a given class member is entitled to damages, Briseno, 844 F.3d at 1126 n.6 (describing Nexium). That mechanism often overlaps with the class definition itself. See, e.g., In re Dial Complete Mktg. & Sales Practices Litig., 312 F.R.D. 36, 48 52 (D.N.H. 2015). Only the Third Circuit distorts administrative feasibility into an independent requirement 7 While the Eleventh Circuit referenced administrative feasibility in Karhu v. Vital Pharms., Inc., 621 Fed. App x 945, 947 50 (11th Cir. 2015) (unpublished), this opinion is non-precedential and thus does not reflect a definitive stance on the issue. Mullins v. Direct Dig., LLC, 795 F.3d 654, 661 n.2 (7th Cir. 2015). Contra Appellee s Br. 38 39. 14
that the plaintiff prove an objectively verifiable means of identifying absent class members at class certification. Thus, administrative feasibility is not a freestanding requirement in the majority of circuits. Contrary to Defendant s contention, Appellee s Br. 39, the Ames Circuit s administrative feasibility language is fully compatible with a narrow reading of ascertainability that requires only a clear and objective class definition. D. Defendant concedes that records in its possession would make Lowe s class ascertainable under its own proposed standard. Defendant now admits it has records sufficient to allow a diligent plaintiff to satisfy the ascertainability requirement. Appellee s Br. 43. It concedes that if Lowe were to obtain those records and then subpoena[] third-party retailer[s] of its products, she would readily meet even Defendant s notion of administrative feasibility. Appellee s Br. 42 43. Willa Lowe agrees. See Appellant s Br. 54 (pointing to credit card data linking [class members] to businesses in Ames that sell the mislabeled Meaties ). Yet Defendant asserts that Lowe forfeited her chance to obtain the records necessary to meet heightened ascertainability. 8 This is incorrect. 8 Defendant asserts, without support from the record, that Lowe never subpoenaed its internal records. Appellee s Br. 43. But it is difficult to see how the district court could have known the precise scope of Defendant s records, see J.A. 3, without that discovery. 15
First, an order denying certification... is inherently tentative and the court remains free to modify it in light of subsequent developments in the litigation. 3081 Main St., LLC v. Bus. Owners Liab. Team LLC, 2012 WL 4755048, at *2 (D. Conn. Sept. 24, 2012) (quoting Gen. Tel. Co. v. Falcon, 457 U.S. 147, 160 (1982)). Thus, district courts are free to revisit denials of certification based on developments like Defendant s admissions. Second, additional class discovery is not only appropriate here it is necessary. When Lowe moved for certification, the Ames Circuit had never required that plaintiffs demonstrate objective proof of administrative feasibility by subpoenaing records from nonparties. See J.A. 1, 8. Lowe could not have known she had the burden of subpoenaing records from third-party retailers. Defendant now seeks to penalize Lowe for that fact. Yet in the very case Defendant uses to question Lowe s diligence, the court remanded for further discovery because plaintiff did not have the benefit of our decision [announcing a new ascertainability standard] when he submitted evidence of the class s ascertainability. Hayes v. Wal-Mart Stores, Inc., 725 F.3d 349, 356 (3d Cir. 2013). Since Defendant now concedes its records would enable Lowe to demonstrate an administratively feasible class, this Court should hold that ascertainability is met under any test. At minimum, Lowe should 16
have the chance on remand to request the discovery that Defendant itself admits would satisfy any version of ascertainability. CONCLUSION For the foregoing reasons, Plaintiff-Appellant respectfully requests that this Court reverse the district court s order and remand. March 6, 2017 Respectfully submitted, The John Hart Ely Memorial Team David Beylik Jason Ethridge Jenya Godina Isaac Park David Phillips Derek Reinbold 17